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USDA issues proposed rule to expand BioPreferred program

On May 1, the U.S. Department of Agriculture (“USDA”) published a Proposed Rule which would amend the USDA’s BioPreferred federal procurement program regulations to, in relevant part, (1) include “intermediate ingredient or feedstock” in the definition of “biobased product”; and (2) include the designation of complex assembly products within the scope of the BioPreferred federal procurement program. Prior posts on the BioPreferred Program can be found here and here.

The first proposed change would make it possible for the USDA to designate categories of “intermediate ingredient[s] or feedstock” for federal procurement preference. Such designation would occur by separate rulemaking, which would also include final products that are, or can be, made from those intermediate ingredients or feedstocks. The Proposed Rule defines “intermediate ingredient or feedstock” as:

”A material or compound made in whole or in significant part from biological products, including renewable agricultural materials (including plant, animal, and marine materials) or forestry materials that have undergone a significant amount of value added processing (including thermal, chemical, biological, and mechanical), excluding harvesting operations, offered for sale by a manufacturer or vendor and that is subsequently used to make a more complex compound or product.”

Although the Proposed Rule does not provide any examples of what might constitute an “intermediate ingredient or feedstock,” presumably the term could apply to a product such as a plant-based alcohol which is used to make a final product like hand sanitizer. Subsequent rulemakings will list designated categories of “intermediate ingredient[s] or feedstock,” as well as designated categories of final products which are, or could be made from designated intermediate ingredients or feedstock, and will also set forth the minimum biobased content necessary for individual products to qualify under the designated categories. The Proposed Rule establishes a formula for calculating the biobased content of “intermediate ingredient[s] or feedstock” and final products.

The second proposed change makes it possible for the USDA to designate “complex assembly products” for federal procurement preference. “Complex assembly products” are defined as “[a] system of distinct materials and components assembled to create a finished product with specific functional intent where some or all of the system inputs contain some amount of biobased material or feedstock.” The USDA’s comments in the Proposed Rule suggest that automobiles or computers could be considered “complex assembly products,” though future rulemakings will determine the specific categories of complex assembly products which will be designated under the BioPreferred Program. The Proposed Rule also proposes a formula for calculating the biobased content of complex assembly products.

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